Examining the Fifth Amendment judgment
Monday, 13 December 2010
Adnan M L Karim
"We are under a Constitution, but the Constitution is what the judges say it is…"
-- Charles Evans Hughes, 11th Chief Justice of the United States
THE Supreme Court has declared the Fifth Amendment to the Constitution illegal and void ab initio; condemning military rule in explicit language. Against this backdrop, a special parliamentary committee has been formed which is understood to have the responsibility of proposing constitutional reform to parliament, taking this judgment into consideration.
In this respect, the Ministry of Law, Justice and Parliamentary Affairs has taken steps to reprint the Constitution in light of the decision of the Supreme Court. Different views have been expressed on the issue of reprinting the Constitution after the Fifth Amendment judgment. Some observers have expressed the view that this should be done after Parliament has amended the Constitution as per the judgment whereas others have noted that the Constitution was reprinted without going through Parliament after the judgment of the Eighth Amendment case and the same precedence should be followed now.
However, there is more to this than just the matter of reprinting the Constitution. Both the judgments of the Appellate Division and the High Court Division run almost 500 pages and will be regarded, along with the judgment in the Eight Amendment Case, as landmark decisions in our constitutional jurisprudence. The matters related to the judgment are complicated and technical in nature and need to be critically examined to understand the issues that have far-reaching implications. All martial law instruments are undoubtedly illegal under the Constitution and, therefore, cannot change the Constitution but at the same time the question is whether Parliament can cure that fault? The court answered it in the negative. Had there been no Act of Parliament (in the form of constitutional amendment) ratifying the martial law instruments, the answer would have been obvious.
Judicial review of an Act of parliament: The Constitution of Bangladesh states that the Prime Minister shall exercise the executive power of the Republic and the legislative powers shall be vested in Parliament. The Constitution does not say anything about vesting of judicial power, unlike the US Constitution. Furthermore, there is no explicit authority given to any court to invalidate an Act of Parliament in the Constitution. However, the sub-continental Superior Courts have invalidated Acts of parliaments following principles of constitutional law as applied in the famous decision by Chief Justice Marshall in Marbury Vs Madison. Since both the United States and India are federations, invariably the Superior Courts in those jurisdictions are called on to decide when there appears to be any conflict between state and federal legislation or a question of legislative competence arises. Our courts have taken the view that not only that they have the authority to challenge decisions of the executive branch but also that of the legislature by invalidating any Act of Parliament if it violates the Constitution even if it is an amending Act.
High Court Division's power of judicial review: The power of judicial review of the High Court Division is evoked under Article 102 of the Constitution. Article 102(1) empowers the High Court Division to give directions or orders to any person or authority as may be appropriate to enforce any of the fundamental rights conferred in Part III. For cases other than Fundamental Rights, Article 102 (2) empowers the High Court Division to make an order:
i. directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do;
ii. declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect;
iii. directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner or
iv. requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.
These are analogous powers that the English Superior Courts had under the prerogative writs of mandamus, certiorari, prohibition, habeas corpus and quo-warranto. Relief in the form of ordinary declaration and injunction is available seperately to the English Courts, but such power is not separately granted by the Constitution but implicit within the language of Article 102 (2). Therefore, if an Act of Parliament were to be challenged under this Article then it is most likely to be challenged by way of Certiorari in the form of Article 102(2) (a) (ii).
Scope of remedy granted: Certiorari is now called quashing order. A quashing order is an order of the High Court by which decisions of an inferior court, tribunal, public authority or any other body of persons who are susceptible to judicial review may be quashed. If the decision is quashed, the decision-maker may be free to re-consider it and as long as the error of law is not repeated and no other error committed, may reach the same decision.
Where the court makes a quashing order in respect of the decision to which the claim relates, it may remit the matter to the decision-maker and direct it to reconsider the matter and reach a decision in accordance with the judgment of the court. Alternatively, where remitting the matter would serve no purpose, the court may take the decision itself. The validity of an Act of Parliament will not be questioned by the courts otherwise than by way of a declaration that the Act is incompatible with European Union (EU) law or by way of a declaration given pursuant to the Human Rights Act, 1998 that the Act of Parliament is incompatible with the convention for the Protection of Human Rights and Fundamental Freedoms.
The English courts can issue a declaration of incompatibility if any legislation is found to be incompatible with the Human Rights Act, 1998 (HRA). If found incompatible, the declaration is made pursuant to Section (s) 4 HRA and then the relevant Minister may initiate a parliamentary process to remedy the defect in the legislation. A declaration does not have the effect of making primary legislation invalid. Parliament remains sovereign in the HRA, but the government may take remedial action to amend the legislation. Subordinate legislation declared incompatible can be quashed by a higher court. This declaration of incompatibility does not have any effect on the validity, continuing operation or enforcement of legislation.
Similarly, even inferior courts in England and Wales are under an obligation to rely upon a rule of European Community (EC) law that is irreconcilable with national law. The EC law has primacy over domestic law. In England and Wales, if an Act of Parliament, statutory instrument or common law precedent is irreconcilable with EC law, all courts and tribunals are to "dis-apply" any provision of that Act, instrument or common law. The offending Act or instrument is not struck down or quashed, but merely becomes unable to be applied.
The Constitution does not specify the nature of relief that may be granted for breach of Fundamental Rights and the scope is wide since "any" appropriate order or direction may be given to enforce any of the Fundamental Rights. For all other instances, Article 102(2) specifies the scope and range of remedy available from the High Court Division. Article 102(2) (a) (ii) does not appear to give the High Court Division necessary power to strike down or quash any Act of Parliament in the form of Certiorari.
Since Parliament does not fall under the definition of statutory public authority, such writ may be not be issued against Parliament. This sort of relief does not seem available from the language of Article 102(2) (a) (ii). Even if by stretching the definition of statutory public authority Parliament is included, the remedy available is in the form of a "declaration" from the Court that any act (action) done or proceeding taken by Parliament has been done or taken without lawful authority and is of no legal effect. It is difficult to contend how the jurisdiction of the High Court Division may be evoked under Article 102(2) (a) (ii) in the nature of Certiorari to strike down or nullify an Act of Parliament, let alone an amending Act, so as to cause it to be removed from the statute book.
Review under the supremacy clause: Article 7 is the supremacy clause in our Constitution. It states:
"Article 7. (1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution
(2) This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void."
Fundamental rights are entrenched by a similar provision-
"Article 26. (1) All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.
(2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.
(3) Nothing in this article shall apply to any amendment of this Constitution made under article 142."
There is no separate provision in our Constitution that confers the High Court Division power of judicial review other than Article 102. The supremacy clause is as much of a warning to Parliament as it is guidance to the Courts. Nevertheless, invariably it is up to the Courts to uphold and apply the supremacy clause in a case of dispute and in such a case, it is submitted that the power granted by Article 7(2) should be deemed separate and distinct from the powers granted by Article 102(2). The types of remedy to be provided by the Court under Article 102 (1) and 102 (2) are well demarcated. When Articles 7(2) is interpreted to give the High Court Division power to review law, such a power would be limited to a "finding" of or "holding" such a law to be in violation of the Constitution and the nature of reliefs under Article 102 (2) is not available.
Article 13 of the Constitution of India correspondents to Article 26 of our Constitution and the word "void" is used in both of these articles as well as in Article 7(2) of our Constitution. Indian Courts decided that the word void in Article 13(1) and (2) does not mean "repealed", nor is a law declared void under Article 13(1) and (2) obliterated from the statute book; it cannot be said that they are still-born and non-est. The Indian Courts adopted the theory known as the theory of eclipse, which is based on the notion that a law which violates fundamental rights is not a nullity or void ab initio, but remains unenforceable and it implicitly recognizes the distinction between a law void for legislative competence and a law void for violating the Constitution.
The authorities in the United States take the view that while a law on a topic not within the competence of a legislature was a nullity, a law on a topic within its competence but violating constitutional prohibitions was only unenforceable. The consequence of this is that a law void of legislative competence would have to be re-enacted but one which violates constitutional limitation would become effective once those limitations were removed.
The word "void" means having no legal effect. Therefore if an Act of Parliament or parts thereof are found to be offending the Constitution either under the supremacy clause or the Fundamental Rights clause, that Act or its parts will not be removed from the statute book pursuant to the Court's order since it will amount to "repeal". Rather, that Act or the offending part will simply cease to have any legal effect or force.
Once there is such a "finding" by the Court, it would be up to Parliament to repeal or amend the law to conform to the judgment of the Court and bring the offending Act in line with the Constitution. As long as that is not done, the Act or its offending part simply would remain suspended and unenforceable. Pending such repeal or amendment by Parliament, if the matter relates to breaches of Fundamental Rights, the High Court Division may give any relief that may be appropriate to achieve enforcement of those rights; and for non-fundamental rights cases, can only give relief in the form of prerogative writs as codified in Article 102 (2).
The writer is a Barrister-at-Law and advocate, Supreme Court of Bangladesh. He can be reached at e-mail: adnan.karim@templecourt.co.uk
"We are under a Constitution, but the Constitution is what the judges say it is…"
-- Charles Evans Hughes, 11th Chief Justice of the United States
THE Supreme Court has declared the Fifth Amendment to the Constitution illegal and void ab initio; condemning military rule in explicit language. Against this backdrop, a special parliamentary committee has been formed which is understood to have the responsibility of proposing constitutional reform to parliament, taking this judgment into consideration.
In this respect, the Ministry of Law, Justice and Parliamentary Affairs has taken steps to reprint the Constitution in light of the decision of the Supreme Court. Different views have been expressed on the issue of reprinting the Constitution after the Fifth Amendment judgment. Some observers have expressed the view that this should be done after Parliament has amended the Constitution as per the judgment whereas others have noted that the Constitution was reprinted without going through Parliament after the judgment of the Eighth Amendment case and the same precedence should be followed now.
However, there is more to this than just the matter of reprinting the Constitution. Both the judgments of the Appellate Division and the High Court Division run almost 500 pages and will be regarded, along with the judgment in the Eight Amendment Case, as landmark decisions in our constitutional jurisprudence. The matters related to the judgment are complicated and technical in nature and need to be critically examined to understand the issues that have far-reaching implications. All martial law instruments are undoubtedly illegal under the Constitution and, therefore, cannot change the Constitution but at the same time the question is whether Parliament can cure that fault? The court answered it in the negative. Had there been no Act of Parliament (in the form of constitutional amendment) ratifying the martial law instruments, the answer would have been obvious.
Judicial review of an Act of parliament: The Constitution of Bangladesh states that the Prime Minister shall exercise the executive power of the Republic and the legislative powers shall be vested in Parliament. The Constitution does not say anything about vesting of judicial power, unlike the US Constitution. Furthermore, there is no explicit authority given to any court to invalidate an Act of Parliament in the Constitution. However, the sub-continental Superior Courts have invalidated Acts of parliaments following principles of constitutional law as applied in the famous decision by Chief Justice Marshall in Marbury Vs Madison. Since both the United States and India are federations, invariably the Superior Courts in those jurisdictions are called on to decide when there appears to be any conflict between state and federal legislation or a question of legislative competence arises. Our courts have taken the view that not only that they have the authority to challenge decisions of the executive branch but also that of the legislature by invalidating any Act of Parliament if it violates the Constitution even if it is an amending Act.
High Court Division's power of judicial review: The power of judicial review of the High Court Division is evoked under Article 102 of the Constitution. Article 102(1) empowers the High Court Division to give directions or orders to any person or authority as may be appropriate to enforce any of the fundamental rights conferred in Part III. For cases other than Fundamental Rights, Article 102 (2) empowers the High Court Division to make an order:
i. directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do;
ii. declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect;
iii. directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner or
iv. requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.
These are analogous powers that the English Superior Courts had under the prerogative writs of mandamus, certiorari, prohibition, habeas corpus and quo-warranto. Relief in the form of ordinary declaration and injunction is available seperately to the English Courts, but such power is not separately granted by the Constitution but implicit within the language of Article 102 (2). Therefore, if an Act of Parliament were to be challenged under this Article then it is most likely to be challenged by way of Certiorari in the form of Article 102(2) (a) (ii).
Scope of remedy granted: Certiorari is now called quashing order. A quashing order is an order of the High Court by which decisions of an inferior court, tribunal, public authority or any other body of persons who are susceptible to judicial review may be quashed. If the decision is quashed, the decision-maker may be free to re-consider it and as long as the error of law is not repeated and no other error committed, may reach the same decision.
Where the court makes a quashing order in respect of the decision to which the claim relates, it may remit the matter to the decision-maker and direct it to reconsider the matter and reach a decision in accordance with the judgment of the court. Alternatively, where remitting the matter would serve no purpose, the court may take the decision itself. The validity of an Act of Parliament will not be questioned by the courts otherwise than by way of a declaration that the Act is incompatible with European Union (EU) law or by way of a declaration given pursuant to the Human Rights Act, 1998 that the Act of Parliament is incompatible with the convention for the Protection of Human Rights and Fundamental Freedoms.
The English courts can issue a declaration of incompatibility if any legislation is found to be incompatible with the Human Rights Act, 1998 (HRA). If found incompatible, the declaration is made pursuant to Section (s) 4 HRA and then the relevant Minister may initiate a parliamentary process to remedy the defect in the legislation. A declaration does not have the effect of making primary legislation invalid. Parliament remains sovereign in the HRA, but the government may take remedial action to amend the legislation. Subordinate legislation declared incompatible can be quashed by a higher court. This declaration of incompatibility does not have any effect on the validity, continuing operation or enforcement of legislation.
Similarly, even inferior courts in England and Wales are under an obligation to rely upon a rule of European Community (EC) law that is irreconcilable with national law. The EC law has primacy over domestic law. In England and Wales, if an Act of Parliament, statutory instrument or common law precedent is irreconcilable with EC law, all courts and tribunals are to "dis-apply" any provision of that Act, instrument or common law. The offending Act or instrument is not struck down or quashed, but merely becomes unable to be applied.
The Constitution does not specify the nature of relief that may be granted for breach of Fundamental Rights and the scope is wide since "any" appropriate order or direction may be given to enforce any of the Fundamental Rights. For all other instances, Article 102(2) specifies the scope and range of remedy available from the High Court Division. Article 102(2) (a) (ii) does not appear to give the High Court Division necessary power to strike down or quash any Act of Parliament in the form of Certiorari.
Since Parliament does not fall under the definition of statutory public authority, such writ may be not be issued against Parliament. This sort of relief does not seem available from the language of Article 102(2) (a) (ii). Even if by stretching the definition of statutory public authority Parliament is included, the remedy available is in the form of a "declaration" from the Court that any act (action) done or proceeding taken by Parliament has been done or taken without lawful authority and is of no legal effect. It is difficult to contend how the jurisdiction of the High Court Division may be evoked under Article 102(2) (a) (ii) in the nature of Certiorari to strike down or nullify an Act of Parliament, let alone an amending Act, so as to cause it to be removed from the statute book.
Review under the supremacy clause: Article 7 is the supremacy clause in our Constitution. It states:
"Article 7. (1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution
(2) This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void."
Fundamental rights are entrenched by a similar provision-
"Article 26. (1) All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.
(2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.
(3) Nothing in this article shall apply to any amendment of this Constitution made under article 142."
There is no separate provision in our Constitution that confers the High Court Division power of judicial review other than Article 102. The supremacy clause is as much of a warning to Parliament as it is guidance to the Courts. Nevertheless, invariably it is up to the Courts to uphold and apply the supremacy clause in a case of dispute and in such a case, it is submitted that the power granted by Article 7(2) should be deemed separate and distinct from the powers granted by Article 102(2). The types of remedy to be provided by the Court under Article 102 (1) and 102 (2) are well demarcated. When Articles 7(2) is interpreted to give the High Court Division power to review law, such a power would be limited to a "finding" of or "holding" such a law to be in violation of the Constitution and the nature of reliefs under Article 102 (2) is not available.
Article 13 of the Constitution of India correspondents to Article 26 of our Constitution and the word "void" is used in both of these articles as well as in Article 7(2) of our Constitution. Indian Courts decided that the word void in Article 13(1) and (2) does not mean "repealed", nor is a law declared void under Article 13(1) and (2) obliterated from the statute book; it cannot be said that they are still-born and non-est. The Indian Courts adopted the theory known as the theory of eclipse, which is based on the notion that a law which violates fundamental rights is not a nullity or void ab initio, but remains unenforceable and it implicitly recognizes the distinction between a law void for legislative competence and a law void for violating the Constitution.
The authorities in the United States take the view that while a law on a topic not within the competence of a legislature was a nullity, a law on a topic within its competence but violating constitutional prohibitions was only unenforceable. The consequence of this is that a law void of legislative competence would have to be re-enacted but one which violates constitutional limitation would become effective once those limitations were removed.
The word "void" means having no legal effect. Therefore if an Act of Parliament or parts thereof are found to be offending the Constitution either under the supremacy clause or the Fundamental Rights clause, that Act or its parts will not be removed from the statute book pursuant to the Court's order since it will amount to "repeal". Rather, that Act or the offending part will simply cease to have any legal effect or force.
Once there is such a "finding" by the Court, it would be up to Parliament to repeal or amend the law to conform to the judgment of the Court and bring the offending Act in line with the Constitution. As long as that is not done, the Act or its offending part simply would remain suspended and unenforceable. Pending such repeal or amendment by Parliament, if the matter relates to breaches of Fundamental Rights, the High Court Division may give any relief that may be appropriate to achieve enforcement of those rights; and for non-fundamental rights cases, can only give relief in the form of prerogative writs as codified in Article 102 (2).
The writer is a Barrister-at-Law and advocate, Supreme Court of Bangladesh. He can be reached at e-mail: adnan.karim@templecourt.co.uk